Magazine article Information Today

Abolishing Fair Use?

Magazine article Information Today

Abolishing Fair Use?

Article excerpt

Fair use has been one of the problem children of copyright law for a long time. Since it was originally created, it has lived in a state of conflict. It was designed to let one person infringe legally on the copyright held by another, which may not sit well with the copyright holder. But fair use was also designed to provide new--and different--uses for copyrighted works to allow knowledge and learning to develop, which most people considered to be a good thing.

Fair use is also misunderstood. It is not a right as in, "I have a fair use right to copy that article." Legally, fair use exempts a user from infringement concerns under certain limited and specified circumstances. More importantly, fair use is considered a legal defense that is often raised after an infringement has already taken place.

Finally, fair use is complex and confusing. The fair use doctrine outlines a series of factors to determine if the use of materials is fair or not. Those factors include requiring that the material be used for a specific beneficial purpose such as research, teaching, criticism, or comment; news reporting and inquiring about the purpose of the use; the nature of the work being used; the amount used; and the effect on the market for the work. Because of all the variables, determining whether the use of a material is fair is often uncertain; the final answer often can't be made certain without a lawsuit and court decision. As a result, fair use is often underused or overused, and it frequently becomes the subject of litigation such as the current lawsuit between Google and The Author's Guild over the Google Print program.

A Red Herring

Not surprisingly, calls to reform the fair use doctrine have been raised periodically. In September, a prominent federal appeals court judge suggested eliminating the fair use doctrine entirely. According to Judge Alex Kozinski (9th U.S. Circuit Court of Appeals), who spoke at an intellectual property workshop: "Fair use is a red herring, and we should just dump it."

Kozinski's remarks were focused primarily on the right to make derivative works (works that take a substantial amount of an existing work and use it in a new form or format). This is one of the "bundle of rights" that makes up a copyright, along with the right to make copies, publish and distribute copies, and perform or display copyrighted works.

The use of search engine thumbnails is one example of a derivative work, as are parodies and satires. Reviews, indexes, translations, fictionalizations, sampling, adaptations, and the use of extensive quotations in new works are also derivative works. Repackaging content to digital archives can be considered a derivative work as well as a copy.

Extreme Results

Kozinski argued that fair use forces one of two extreme results: If the new use is not found to be fair, the original author has the absolute right to prevent the publication of derivative works, which limits creativity. However, if the derivative use is found to be fair, the new user profits while the original author is shut out completely.

O. J. and Gone With the Wind

Two fair use cases dealing with parodies illustrate this problem. In one case, an author created a satire of the O. J. Simpson murder case using a Dr. Seuss rhythm: "One knife, two knife, red knife, dead wife." The estate of the real Dr. …

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